The Amsterdam Treaty incorporated
the Schengen Agreements into the mainstream of European Union law.
Ireland and the United Kingdom opted out of Schengen's border control
arrangements, while participating in certain provisions relating to
judicial and police cooperation.

The borderless zone created by the Schengen Agreements, the
Schengen Area, currently consists of
25 European countries.

History

Although individual states issued passports prior to the First World War, systematic identity
controls at borders were largely unknown and passports were
unnecessary for international travel. The War and its aftermath
brought with it a higher sensitivity to issues of nationality and
passport controls became an ordinary feature of international
travel. Notwithstanding the raising of passport controls in Europe
during and after the First World War, some zones of free movement
did continue.

Shortly
after the creation of the Irish Free
State in 1922, an informal agreement was reached between the
British and Irish governments allowing the border between the Free
State and the United
Kingdom to remain open. The existence of the
Common Travel Area along with the
UK's unwillingness to sign the Schengen Agreement, resulted in
Ireland deciding not to join the Schengen Area.

In 1944, the governments-in-exile of Belgium, the Netherlands and
Luxembourg (Benelux) signed an agreement to
eliminate border controls between themselves; this agreement was
put into force in 1948.

Similarly, the Nordic Passport
Union was created in 1952 to permit free travel amongst the
Nordic countries of Denmark,
Finland, Iceland, Norway and Sweden and some of their associated
territories. Elimination of border controls was implemented in
1958.

The Schengen Agreement

The Schengen Agreement was originally created independently of the
European Union, in part owing to the lack of consensus amongst EU
members, and in part because those ready to implement the idea did
not wish to wait for others to be ready to join . The United
Kingdom and Denmark did not join the union , but Denmark joined
later when Norway and other Nordic countries were allowed.

However, the Treaty of Amsterdam
incorporated the legal framework brought about meanwhile, the
so-called Schengen-Acquis, by the agreement into the European Union
framework, effectively making the agreement part of the EU and its modes of legislature. Amongst other things,
at first the Council of
the European Union, later the European Parliament and the Council of the European Union
in the codecision procedure,
took the place of the Executive Committee which had been created
under the agreement, leading to the result that legal acts setting
out the conditions for entry into the Schengen Area can now be
enacted by majority vote in the legislative bodies of the European Union. This also concerns the
original Schengen Agreement itself, which may be altered or
repealed by means of European Union legislation, without such
amendments having to be ratified by the signatory states. Thus, the
Schengen States which are not EU members have few options to
participate in shaping the evolution of the Schengen rules; their
options are effectively reduced to agreeing with whatever is
presented before them, or withdrawing from the agreement. Future
applicants to the European Union must fulfil the agreement criteria
regarding their external border policies in order to be accepted
into the EU.

Legal basis of the Schengen rules

Provisions in the treaties of the European Union

The legal basis for Schengen in the treaties of the European
Union has been inserted in the Treaty establishing
the European Community through Article 2, point 15 of the
Treaty of Amsterdam. This
inserted a new title named "Visas, asylum, immigration and other
policies related to free movement of persons" into the treaty,
currently numbered as Title IV, and comprising articles 61 to 69.
The Treaty of Lisbon substantially
amends the provisions of the articles in the title, renames the
title to "Area of freedom, security and justice" and divides it
into five chapters, called "General provisions", "Policies on
border checks, asylum and immigration", "Judicial cooperation in
civil matters", "Judicial cooperation in criminal matters", and
"Police cooperation".

Two Schengen agreements

The two agreements which are commonly referred to as Schengen
Agreement are:

The 1985 Agreement between the Governments of the States of
the Benelux Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their common
borders, also known as Schengen I, which provided for
simple visual surveillance of private vehicles crossing the
common border at reduced speed, without requiring such vehicles to
stop. Persons who did not have to meet specific requirements
at internal borders, as, for example, visa requirements, could use
this fast lane procedure by affixing to the windscreen a green
disc measuring at least eight centimetres in diameter.

The 1990 Convention implementing the Schengen Agreement of
14 June 1985 between the Governments of the States of the Benelux
Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at their common
borders, also known as Schengen II or
CIS.

European Union Regulations

Other relevant legal texts which form part of the Schengen laws
include:

The Regulation (EC) No 562/2006 of the European Parliament
and of the Council establishing a Community Code on the rules
governing the movement of persons across borders (Schengen Borders
Code), repealing the parts of the Convention Implementing the
Schengen Agreement, dealing in detail with border controls and the
prerequisites for entry by third-country nationals;

The Council Regulation (EC) No 539/2001, dealing with
the visa requirement for short stays in the Schengen area according
to nationality;

The
Council Regulation (EC) No 693/2003, which deals with the
transit from the main part of Russia to the
Kaliningrad
area;

The Common Consular Instructions on Visas for the
Diplomatic Missions and Consular Posts, which contains rules
of procedure for the issuance of visa;

The Council Regulation (EC) No 1683/95 of 29 May 1995
laying down a uniform format for visas;

The Regulation (EC) No 1987/2006 of the European Parliament
and of the Council of 20 December 2006 on the establishment,
operation and use of the second generation Schengen Information
System (SIS II), governing the introduction of the second
generation of the Schengen Information System.

The Council Regulation (EC) No 343/2003, dealing with
the question which member state is responsible to handle an asylum
request lodged by a third-country national, also referred to as
Dublin II;

The Commission Regulation (EC) No 1560/2003, setting
out detailed procedures for the application of the Dublin
II regulation.

Legislators of Schengen rules

The
amended Treaty establishing a European Community specified that
during a 5 year transitional period following the entry into force
of the Treaty of Amsterdam (1 May 1999) the Council could adopt Schengen
rules only unanimously after a proposal from the European
Commission or on the initiative of a Member State.The
European
Parliament was only to be consulted.

After this five year transitional period, the Council would make a
unanimous decision to legislate in the future certain or all
Schengen rules under the codecision
procedure, which gives the European Parliament equal power to
the Council. The Council did so with the Council Decision of 22
December 2004 providing for certain areas covered by Title IV of
Part Three of the Treaty establishing the European Community to be
governed by the procedure laid down in Article 251 of that
Treaty. As from 1 January 2005, virtually all Schengen rules
are thus legislated by both the Parliament and the Council.

See also

References and notes

Irish Minister for Justice, Nora Owen, Dáil Debates
volume 450 column 1171 (14 March 1995) [1]; Minister for Justice, John O'Donoghue,
Dáil Debates volume 501 column 1506 (9 March 1999)[2]; "Declaration by Ireland on Article 3 of
the Protocol on the position of the United Kingdom and Ireland"
attached to the Treaty of Amsterdam.

The complete acquis had been published here: .

.

Example: By article 39 subsection 1 of the Schengen Borders
Code, Articles 2 to 8 of the Schengen Agreement had been repealed -
.